Citation Nr: 0519334
Decision Date: 07/15/05 Archive Date: 07/22/05
DOCKET NO. 03-06 659 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to an increased rating for instability of the
right knee, currently evaluated as 20 percent disabling.
2. Entitlement to an increased rating for traumatic
arthritis of the right knee, currently evaluated as 10
percent disabling.
3. Entitlement to an increased rating for traumatic
arthritis of the left knee, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Kentucky Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Eric S. Leboff, Counsel
INTRODUCTION
The veteran had active service from July 1944 until July
1946.
These matters come before the Board of Veterans' Appeals (BVA
or Board) from an October 2002 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
Cleveland, Ohio.
These matters were previously before the Board in January
2004. At that time, a remand was ordered to accomplish
additional development.
FINDINGS OF FACT
1. The veteran's instability of the right knee is manifested
by complaints of episodic giving away; objectively, Lachman's
and McMurray's signs were negative.
2. The veteran's traumatic arthritis of the right knee is
manifested by complaints of pain, stiffness, fatigability and
loss of endurance; objectively, he had range of motion from 0
to 85 degrees, with pain at the end of flexion.
3. The veteran's traumatic arthritis of the left knee is
manifested by complaints of pain, stiffness, fatigability and
loss of endurance; objectively, he had range of motion from 0
to 80 degrees, with pain at the end of flexion.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an evaluation in excess
of 20 percent for right knee instability have not been met.
38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 4.71a, Diagnostic Code 5257 (2004).
2. The criteria for entitlement to an evaluation in excess
of 10 percent for traumatic arthritis of the right knee have
not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West
2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a,
Diagnostic Code 5003-5010 (2004).
3. The criteria for entitlement to an evaluation in excess
of 10 percent for traumatic arthritis of the left knee have
not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West
2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a,
Diagnostic Code 5003-5010 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act (VCAA). This new law
eliminates the concept of a well-grounded claim, and
redefines the obligations of the VA with respect to the
duties to notify and to assist claimants in the development
of their claims. First, the VA has a duty to notify the
appellant and his representative, if represented, of any
information and evidence needed to substantiate and complete
a claim. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002). In
this regard, VA will inform the appellant of which
information and evidence, if any, that he is to provide and
which information and evidence, if any, VA will attempt to
obtain on his behalf. VA will also request that the
appellant provide any evidence in his possession that
pertains to the claim. Second, the VA has a duty to assist
the appellant in obtaining evidence necessary to substantiate
the claim. See 38 U.S.C.A. § 5103A.
Notice
A VA letter issued in January 2004, along with information
provided in the October 2002 and March 2005 rating decisions
apprised the appellant of the information and evidence
necessary to substantiate his claims. Such correspondence
also apprised him as to which information and evidence, if
any, that he is to provide, and which information and
evidence, if any, VA will attempt to obtain on his behalf.
He was also advised to send any evidence in his possession,
pertinent to the appeal, to VA. As such, the Board finds
that the correspondence satisfied VA's duty to notify the
veteran, as required by Quartuccio v. Principi, 16 Vet. App.
183 (2002), 38 U.S.C.A. § 5103, and 38 C.F.R. § 3.159 (2004).
It is also noted that a recent case of the United States
Court of Appeals for Veterans Claims (Court) held that
compliance with 38 U.S.C.A. § 5103 required that the VCAA
notice requirement be accomplished prior to an initial
unfavorable determination by the agency of original
jurisdiction. See Pelegrini v. Principi, 18 Vet App 112
(2004) (Pelegrini II). However, in the present case, the
appellant's claims were initially denied prior to the
issuance of appropriate VCAA notice.
Because adequate VCAA notice in this case was not provided to
the veteran prior to the initial AOJ adjudication denying the
claim, the timing of the notice does not comply with the
express requirements of the law as found by the Court in
Pelegrini. While the Court did not specify how the Secretary
can properly cure a defect in the timing of the notice, it
did leave open the possibility that a notice error of this
kind may be non-prejudicial to a claimant. There is no basis
for concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication. See Mayfield v. Nicholson, No. 02-1077 (U.S.
Vet. App. April 14, 2005).
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate
decision and becomes the single and sole decision of the
Secretary in the matter under consideration. See 38 C.F.R. §
20.1104. Further, a claimant is not compelled under 38
U.S.C. § 5108 to proffer new and material evidence simply
because an AOJ decision is appealed to the Board. Rather, it
is only after a decision of either the AOJ or the Board
becomes final that a claimant has to surmount the reopening
hurdle.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the veteran was not given prior
to the first AOJ adjudication of the claim, the notice was
provided by the AOJ prior to the transfer and certification
of his case to the Board, and the content of the notice fully
complied with the requirements of 38 U.S.C. § 5103(a) and 38
C.F.R. § 3.159(b). The appellant has been provided with
every opportunity to submit evidence and argument in support
of his claim, and to respond to VA notices. Therefore, not
withstanding Pelegrini II, to decide the appeal would not be
prejudicial error to him.
The Court in Pelegrini II also held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b) must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim. This new "fourth element" of the
notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). See VAOPGCPREC 01-2004. As discussed above,
the Board has found that the appellant was provided every
opportunity to identify and submit evidence in support of his
claim.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error). In this case, because
each of the four content requirements of a VCAA notice has
been fully satisfied, any deficiency as to the timing of VCAA
notice to the appellant is harmless error.
Duty to Assist
With regard to the duty to assist, the claims file contains
the veteran's reports of VA post service treatment and
examination. Further, a transcript of the veteran's April
2003 hearing before the RO is of record. Additionally, the
veteran has submitted statements in support of his claim.
The Board has carefully reviewed the veteran's statements and
concludes that he has not identified further evidence not
already of record. In fact, in a February 2004
communication, the veteran clearly indicated that he had no
further evidence to submit.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claim. Essentially, all available evidence
that could substantiate the claim has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
Relevant law and regulations
Disability evaluations- in general
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4 (2004). When a question arises as to which
of two ratings applies under a particular diagnostic code,
the higher evaluation is assigned if the disability more
closely approximates the criteria for the higher rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. After careful consideration of the evidence, any
reasonable doubt remaining is resolved in favor of the
veteran. 38 C.F.R. § 4.3.
Further, a disability rating may require re-evaluation in
accordance with changes in a veteran's condition. It is thus
essential in determining the level of current impairment that
the disability is considered in the context of the entire
recorded history. 38 C.F.R. § 4.1. Nevertheless, the
present level of disability is of primary concern. Francisco
v. Brown, 7 Vet. App. 55, 58 (1994).
Rating musculoskeletal disabilities
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App.
202, 206-07 (1995). Painful, unstable, or malaligned joints,
due to healed injury, are entitled to at least the minimum
compensable rating for the joint. 38 C.F.R. § 4.59. The
factors involved in evaluating, and rating, disabilities of
the joints include weakness; fatigability; incoordination;
restricted or excess movement of the joint, or pain on
movement. 38 C.F.R. § 4.45.
Procedural history
The veteran was initially granted service connection for weak
knees in an August 1951 rating decision. At the outset, a 10
percent rating was assigned. Subsequently, a noncompensable
evaluation was assigned effective October 1951. In a
September 1992 rating action, the disability was
characterized as traumatic arthritis of the knees. A 20
percent rating was assigned for the right knee and a
noncompensable evaluation was assigned as to the left knee,
both effective December 1988. Then, in February 1999, the
left knee rating was increased to 10 percent.
The present appeal stems from a June 2001 request for an
increased evaluation as to both knees. In an October 2002
rating decision, both evaluations were continued. The
veteran appealed that determination. During the pendency of
the appeal, in March 2005, the veteran's 20 percent
evaluation for the right knee was recharacteriz
recharacterized to reflect instability of the knee. A
separate 10 percent evaluation was assigned for traumatic
arthritis of the right knee. Thus, at present, the veteran
is service connected for right knee instability, at 20
percent, and for traumatic arthritis of each knee, at 10
percent, each.
Factual background
The veteran was examined by VA in September 2002. It was
noted that he ambulated with a cane, due to his knee
disabilities. While both knees were problematic, the right
was worse than the left. The veteran reported that his knees
cracked loudly when he walked. He was in pain at least two-
thirds of the time. Additionally, his right knee locked up
on occasion. Occupationally, the veteran was a retired truck
driver, who quit work two years earlier.
Objectively, the veteran walked with a cane, exhibiting an
antalgic gait. The patella of the right knee was fixed and
had limited mobility. His range of motion was from 0 to 90
degrees, with pain at 90 degrees of flexion. There was pain
with attempts at all maneuvers of the knee. There was no
lateral instability and Lachman and McMurray signs were
negative. His quadriceps strength was 3 out of 5. No
incoordination was detected.
Evaluation of the left knee revealed a mobile patella. His
range of motion of the left knee was from 0 to 120 degrees,
with pain at 120 degrees. There was no lateral instability,
and Lachman and McMurray's tests were negative. His
quadriceps strength was 4 out of 5, with no incoordination.
Following the examination, the diagnosis was bilateral
degenerative arthritis of the knees, greater on the right,
with chronic pain and muscle weakness.
The veteran was again examined by VA in February 2003. The
veteran reported considerable knee pain. His knees regularly
popped and gave out, causing him to "walk funny." He
estimated that he had fallen approximately a thousand times
due to his knees since discharge from service. He indicated
that the problem was greater with respect to the right knee.
Upon physical examination of the right knee, there was
increased fluid in the right posterior fossa. There was also
increased anterior posterior excursion on the right and
increased slightly medial opening on the right compared to
the left. Grind test was positive. He had range of motion
from 0 to 90 degrees. An additional 30 degrees was achieved
passively, but with pain.
Upon physical examination of the left knee, grind test was
positive. The veteran had range of motion from 0 to 100
degrees. He had passive range of motion to 130 degrees, with
pain at that point.
Following the examination, the assessment was degenerative
joint disease of the knees, with instability and effusion.
(A subsequent addendum in May 2003 clarified that the
instability referred only to the right knee.)
At a personal hearing before the RO in April 2003, the
veteran discussed his knee disabilities. With respect to his
right knee instability, he stated that his knees locked up,
causing him to fall. (Transcript "T" at 5.) He further
indicated that he occasionally used a cane or crutch. He was
once issued a brace, which did not help. (T. at 6.) Further
regarding his instability, her stated that he could not stand
from a kneeling position. (T. at 8.) Moreover, when he fell
in his yard, he would request help in order to stand back up.
(T. at 10.)
The veteran also discussed the symptomatology associated with
his bilateral traumatic arthritis of the knees. He indicated
that he took pain medication on occasion. (T. at 5.) He
described his right knee pain by saying that it felt like
someone was stabbing the knee with a knife. (T. at 6.) His
left knee also hurt, but not as severely. (T. at 7.) He
explained that his knee pain interfered with his sleep at
night. (T. at 9.) Additionally, he experienced slight
swelling in the knees.
He also explained that his bilateral knee disability affected
his everyday life. For example, the veteran did not drive
because of his knee disability. (T. at 9.) He was further
limited his ability to perform chores such as mowing the
lawn. (T. at 10.) He stated that he could not do a tenth of
what he used to do. (T. at 11.)
The veteran was most recently examined by VA in March 2004.
He complained of bilateral knee pain ranging from a 4 out of
10 to an 8 out of 10 in intensity. Such discomfort was
increased by sitting in a flexed position, as well as by
changes in the weather. He described his discomfort as an
achy pain with a stiff feeling. He also complained of
weakness and intermittent swelling. He denied heat or
redness. The veteran also reported that his knees folder out
from under him. While there was no locking, he endorsed
fatigability and a lack of endurance for activity. All
weight-bearing activities, even standing, were associated
with increased symptoms. He used as cane to avoid giving
away of the right knee. The veteran also complained of
having no endurance for exercise. His walking was limited to
about 50 yards. Finally, the veteran reported additional
functional limitation associated with repeated use and during
periods of flare-up.
Objectively, as to the right knee, the veteran's gait
revealed decreased time in his stance on the right leg.
There was no erythema or edema. There was marked tenderness
to palpation of the patellar facet. There was also
tenderness to compression of the patellar facet. He had
right knee flexion from 0 to 85 degrees, actively.
Passively, pain began at 90 degrees and he could not flex
beyond 110 degrees. Anterior-posterior instability of the
right knee was noted. There was no evidence of locking and
McMurray's test was negative.
Regarding the left knee, he had active range of motion from 0
to 80 degrees. Passively, pain began at 90 degrees and he
could not flex beyond 110 degrees. The veteran could perform
only one leg lift on the left and could not even complete a
single leg stand on the right. While there was no muscle
incoordination, the veteran had poor balance with tandem
walking. He had some joint motion against resistance, but
was limited by pain.
In closing, the VA examiner commented that the impact of the
veteran's bilateral knee disability on the veteran's ability
to work would be considerable. His unstable right knee was
noted to significantly limit his ability to perform heavy
labor.
I. Increased rating- instability of the right knee
Analysis
The veteran is assigned a 20 percent rating for instability
of the right knee pursuant to Diagnostic Code 5257. Under
that Code section, for "other impairment of the knee,"
involving recurrent subluxation or lateral instability, a 20
percent evaluation is warranted where the evidence shows
moderate knee impairment. A 30 percent rating is warranted
for severe impairment of the knee.
After reviewing the competent evidence of record, the Board
finds that the veteran's disability picture as to right knee
instability is appropriately reflected in the presently
assigned 20 percent evaluation and that a higher rating is
not warranted at this time. In so finding, the Board relies
on the results of the September 2002 VA examination, which
revealed negative Lachman and McMurray signs. Additionally,
no right knee incoordination was noted at that time.
Moreover, although anterior-posterior instability of the
right knee was noted upon subsequent VA examination in March
2004, there was no evidence of locking and McMurray's test
was again negative.
In finding that the next-higher 30 percent evaluation under
Diagnostic Code 5257 is not warranted, the Board acknowledges
the veteran's complaints of falling due to his right knee
giving away. However, such symptomatology has been
contemplated in the assignment of the current 20 percent
rating, for moderate knee impairment to include recurrent
subluxation and lateral instability. Again, given the
evidence discussed above, objective findings consistent with
severe disability have not been demonstrated.
The Board has also considered whether any alternate
Diagnostic Codes may serve as the basis for an increased
rating here. While Diagnostic Code 5258, for cartilage,
semilunar, dislocated, with frequent episodes of locking,
pain and effusion into the joint appears relevant, such Code
section only affords a maximum benefit of 20 percent. As
such, it cannot avail the veteran here.
The Board recognizes the veteran's consistent reports of
pain, fatigability and loss of endurance regarding the right
knee. However, because Diagnostic Code 5257 is not
predicated on loss of range of motion, §§ 4.40 and 4.45, with
respect to pain, do not apply. See Johnson v. Brown, 9 Vet.
App. 7, 11 (1996). As such, the veteran's pain and
fatigability cannot serve as a basis for a higher rating for
his right knee instability. Such symptomatology will be
appropriately considered in conjunction with the traumatic
arthritis claims.
In conclusion, the veteran's disability picture as to his
right knee instability is adequately contemplated by the
currently assigned 20 percent rating under Diagnostic Code
5257. A higher rating is not for application here. As the
preponderance of the evidence is against the claim, the
benefit of the doubt rule is not applicable. See 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56
(1990).
Finally, the evidence does not reflect that, the veteran's
right knee instability caused marked interference with
employment (i.e., beyond that already contemplated in the
assigned evaluation), or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. In so
stating, the VA examiner's comments in March 2004, to the
effect that the veteran's unstable right knee significantly
limited his ability to perform heavy labor, are acknowledged.
However, such has been accounted for in the present 20
percent rating. Moreover, the VA examiner noted that the
veteran's occupation as a truck driver had been primarily
sedentary, and thus was not significantly limited by knee
problems. Hence, assignment of an extra-schedular evaluation
under 38 C.F.R. § 3.321 (2004) is not warranted.
II. Increased rating- traumatic arthritis of the right knee
The veteran is currently assigned a 10 percent evaluation for
traumatic arthritis of the right knee, pursuant to Diagnostic
Code 5010. Under Diagnostic Code 5010, arthritis due to
trauma, substantiated by X-ray findings, is rated as
degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic
Code 5010 (2004). Under 38 C.F.R. § 4.71a, Diagnostic Code
5003 (2004), degenerative arthritis is rated based on
limitation of motion of the affected joint. When, however,
the limitation of motion of the specific joint or joints
involved is noncompensable under the appropriate diagnostic
code, a 10 percent rating may be assigned. In the absence of
limitation of motion, a 10 percent rating may be assigned for
arthritis with x-ray evidence of involvement of two or more
major joints or two or more minor joint groups and a 20
percent rating may be assigned with x-ray evidence of
involvement of two or more major joints or two or more minor
joint groups, with occasional incapacitating exacerbation.
38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. For the
purposes of rating disability from arthritis, VA regulations
consider major joints to be the shoulder, elbow, wrist, hip,
knee, and ankle. 38 C.F.R. § 4.45(f).
Limitation of leg motion is governed by Diagnostic Codes 5260
and 5261. Diagnostic Code 5260 concerns limitation of leg
flexion. A 10 percent rating is warranted where flexion is
limited to 45 degrees. A 20 percent evaluation is for
application where flexion is limited to 30 degrees. Finally,
a 30 percent rating applies where flexion is limited to 15
degrees.
Diagnostic Code 5261 pertains to limitation of leg extension.
Under that Code section, a 10 percent rating is warranted
where extension is limited to 10 degrees. A 20 percent
evaluation is for application where extension is limited to
15 degrees. A 30 percent rating applies where extension is
limited to 20 degrees. A 40 percent rating is warranted
where extension is limited to 30 degrees. Finally, a 50
percent evaluation is warranted where extension is limited to
45 degrees.
In the present case, the veteran's range of motion of the
right knee, at worst, is from 0 to 85 degrees. This does not
meet the specific criteria for a higher rating under either
Diagnostic Code 5260 or 5261. However, additional functional
limitation due to factors such as pain, weakness,
fatigability and incoordination must be considered. See 38
C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202,
206-07 (1995).
In the present case, the veteran has consistently reported
right knee pain and fatigability. He has described the
limitations imposed by such pain, to include an inability to
drive and perform chores at home. He also stated upon VA
examination in March 2004 that his walking was limited to
about 50 yards. Objectively, it is noted that on occasion
the veteran ambulates with the use of a crutch. Moreover,
the competent evidence reveals marked patellar tenderness and
pain at the end of the veteran's range of motion.
Additionally, upon VA examination in March 2004, he was
unable to complete a single leg lift as to the right lower
extremity. He also had poor balance with tandem walking.
Although the Board has considered the above evidence, it is
determined that such pain and fatigability has already been
contemplated in the current assignment of a 10 percent rating
for right knee arthritis. Indeed, the range of motion
findings, by themselves, would not have justified a
compensable evaluation under either Diagnostic Code 5260 or
5261. In essence, then, pain is the basis for the current 10
percent rating.
The Board observes that VA's General Council recently held
that a veteran may receive separate ratings under Diagnostic
Code 5260 and 5261 if the evidence establishes both limited
flexion and extension for the same joint. See VAOPGCPREC 9-
04 (September 2004). However, in the present case, the
competent evidence establishes only limitation of extension.
At all times the veteran was able to fully extend to 0
degrees. As such, an award of separate ratings for flexion
and extension is not appropriate here.
The Board notes that there are no additional Diagnostic Codes
pertinent to the evaluation of his traumatic arthritis of the
right knee. For example, there is no showing of ankylosis,
rendering Diagnostic Code 5256 inapplicable. Further, as the
evidence fails to demonstrate tibia or fibula impairment,
Diagnostic Code 5262 is similarly inapplicable. Finally,
there is no evidence of genu recurvatum such as to warrant
consideration under Diagnostic Code 5263.
In conclusion, the veteran's disability picture as to his
traumatic arthritis of the right knee is commensurate with
the currently assigned 10 percent rating under Diagnostic
Code 5003-5010. A higher rating is not for application here.
As the preponderance of the evidence is against the claim,
the benefit of the doubt rule is not applicable. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
54-56 (1990).
Finally, the evidence does not reflect that, the veteran's
right knee arthritis caused marked interference with
employment (i.e., beyond that already contemplated in the
assigned evaluation), or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. In so
stating, the VA examiner's comments in March 2004, to the
effect that the veteran's knee disabilities considerably
affected his ability to work. However, such has been
accounted for in the present 10 percent rating, and the
combined 40 percent rating as to all knee disabilities.
Hence, assignment of an extra-schedular evaluation under 38
C.F.R. § 3.321 (2004) is not warranted.
III. Increased rating- traumatic arthritis of the left knee
Analysis
The veteran is currently assigned a 10 percent evaluation for
traumatic arthritis of the right knee, pursuant to Diagnostic
Code 5010. Under Diagnostic Code 5010, arthritis due to
trauma, substantiated by X-ray findings, is rated as
degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic
Code 5010 (2004). Under 38 C.F.R. § 4.71a, Diagnostic Code
5003 (2004), degenerative arthritis is rated based on
limitation of motion of the affected joint. When, however,
the limitation of motion of the specific joint or joints
involved is noncompensable under the appropriate diagnostic
code, a 10 percent rating may be assigned. In the absence of
limitation of motion, a 10 percent rating may be assigned for
arthritis with x-ray evidence of involvement of two or more
major joints or two or more minor joint groups and a 20
percent rating may be assigned with x-ray evidence of
involvement of two or more major joints or two or more minor
joint groups, with occasional incapacitating exacerbation.
38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. For the
purposes of rating disability from arthritis, VA regulations
consider major joints to be the shoulder, elbow, wrist, hip,
knee, and ankle. 38 C.F.R. § 4.45(f).
Limitation of leg motion is governed by Diagnostic Codes 5260
and 5161. Diagnostic Code 5260 concerns limitation of leg
flexion. A 10 percent rating is warranted where flexion is
limited to 45 degrees. A 20 percent evaluation is for
application where flexion is limited to 30 degrees. Finally,
a 30 percent rating applies where flexion is limited to 15
degrees.
Diagnostic Code 5261 pertains to limitation of leg extension.
Under that Code section, a 10 percent rating is warranted
where extension is limited to 10 degrees. A 20 percent
evaluation is for application where extension is limited to
15 degrees. A 30 percent rating applies where extension is
limited to 20 degrees. A 40 percent rating is warranted
where extension is limited to 30 degrees. Finally, a 50
percent evaluation is warranted where extension is limited to
45 degrees.
In the present case, the veteran's range of motion of the
left knee, at worst, is from 0 to 80 degrees. This does not
meet the specific criteria for a higher rating under either
Diagnostic Code 5260 or 5261. However, additional functional
limitation due to factors such as pain, weakness,
fatigability and incoordination must be considered. See 38
C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202,
206-07 (1995).
In the present case, the veteran has consistently reported
left knee pain and fatigability. He has described the
limitations imposed by such pain, to include an inability to
drive and perform chores at home. He also stated upon VA
examination in March 2004 that his walking was limited to
about 50 yards. Objectively, it is noted that on occasion
the veteran ambulates with the use of a crutch. Moreover,
the competent evidence reveals marked patellar tenderness and
pain at the end of the veteran's range of motion.
Additionally, upon VA examination in March 2004, he was able
to complete only a single leg lift as to the left lower
extremity. He also had poor balance with tandem walking.
Although the Board has considered the above evidence, it is
determined that such pain and fatigability has already been
contemplated in the current assignment of a 10 percent rating
for left knee traumatic arthritis. Indeed, the range of
motion findings, by themselves, would not have justified a
compensable evaluation under either Diagnostic Code 5260 or
5261. In essence, then, pain is the basis for the current 10
percent rating.
The Board observes that VA's General Council recently held
that a veteran may receive separate ratings under Diagnostic
Code 5260 and 5261 if the evidence establishes both limited
flexion and extension for the same joint. See VAOPGCPREC 9-
04 (September 2004). However, in the present case, the
competent evidence establishes only limitation of extension.
At all times the veteran was able to fully extend to 0
degrees. As such, an award of separate ratings for flexion
and extension is not appropriate here.
The Board notes that there are no additional Diagnostic Codes
pertinent to the evaluation of his traumatic arthritis of the
left knee. For example, there is no showing of ankylosis,
rendering Diagnostic Code 5256 inapplicable. Further, as the
evidence fails to demonstrate tibia or fibula impairment,
Diagnostic Code 5262 is similarly inapplicable. Finally,
there is no evidence of genu recurvatum such as to warrant
consideration under Diagnostic Code 5263.
In conclusion, the veteran's disability picture as to his
traumatic arthritis of the left knee is commensurate with the
currently assigned 10 percent rating under Diagnostic Code
5010-5003. A higher rating is not for application here. As
the preponderance of the evidence is against the claim, the
benefit of the doubt rule is not applicable. See 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56
(1990).
Finally, the evidence does not reflect that, the veteran's
left knee arthritis caused marked interference with
employment (i.e., beyond that already contemplated in the
assigned evaluation), or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. In so
stating, the VA examiner's comments in March 2004, to the
effect that the veteran's knee disabilities considerably
affected his ability to work. However, such has been
accounted for in the present 10 percent rating, and the
combined 40 percent rating as to all knee disabilities.
Hence, assignment of an extra-schedular evaluation under 38
C.F.R. § 3.321 (2004) is not warranted.
ORDER
An increased rating for instability of the right knee is
denied.
An increased rating for traumatic arthritis of the right knee
is denied.
An increased rating for traumatic arthritis of the left knee
is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs